Opinion
4:19-CR-00207
04-19-2023
UNITED STATES OF AMERICA v. ANTHONY D. BRESSI, DAMONICO L. HENDERSON, and TERRY HARRIS, Defendants.
MEMORANDUM OPINION
MATTHEW W. BRANN, CHIEF UNITED STATES DISTRICT JUDGE
After a multi-year investigation into a large-scale, cross-border drug distribution scheme, the Government sought and secured an indictment against three alleged co-conspirators: Anthony Bressi, Damonico Henderson, and Terry Harris. Both the investigation and the evidence it uncovered were extensive. Physical surveillance. Video surveillance. Bank records. Cell phone records. Cooperating witnesses. Searches. Seizures. Through these efforts and with this evidence, the Government obtained Bressi's confession and cooperation-he disclosed the details of the scheme, identified his two co-defendants, and participated in controlled buys to both.
His admission and assistance notwithstanding, Bressi has pleaded not guilty. As have Henderson and Harris. And the three men, in contesting the cases against them, have filed a litany of pretrial motions-eleven in total. But what the Defendants have in quantity, they lack in quality. As detailed below, these motions to suppress and to sever are without merit. They are therefore denied.
I. BACKGROUND
A. Factual Background
1. Start of the Investigation
In the summer of 2016, the Federal Bureau of Investigation began investigating the financial dealings of Anthony Bressi, an ex-convict who served extended prison sentences for manufacturing explosives and methamphetamine.Following his release from prison in 2014, Bressi formed a limited liability company named SHIVA Science & Technology Group LLC (“SHIVA”) and then opened business checking and savings accounts for SHIVA, as well as a personal checking account in his name, with M&T Bank. Over the next two years, Bressi made a series of cash deposits into these accounts that appeared to be “structured”-that is, made in amounts below the $10,000 minimum bank reporting requirement-XXXXX tipping off the FBI to possible money laundering.
The FBI then contacted Bressi's probation officer (at the time, Bressi was under supervision following his release from federal prison) about the possibility of information sharing. The United States Probation Office for the Middle District of Pennsylvania notified this Court and requested authorization “to share information and intelligence with any law enforcement agency involved in [the] investigation” into Bressi's “abnormal [banking] activity.” The Court granted this request on October 14, 2016.
Around this time, Bressi closed the accounts with M&T Bank and opened new business and personal bank accounts with First Keystone Community Bank.Consistent with this Court's October 2016 Order, Bressi's probation officers then provided the FBI with copies of Bressi's and SHIVA's bank statements with First Keystone. XXXXX multiple “suspicious cash transactions” between February and November 2017 totaling approximately $740,000. XXXXX Bressi entered the bank's branch in Danville, Pennsylvania (where Bressi lived) with a “black duffel bag which contained the cash deposit.” First Keystone's employees found this particularly suspect given that “SHIVA, as portrayed by Bressi and its website, does not appear to be a business that would deal in cash.”
2. Initial Investigative Steps
The FBI officially opened its investigation into Bressi in January 2018. In the eighteen months that followed, the Government built its case against Bressi and his co-defendants, Henderson and Harris, through a series of investigative actions.
Banking Records: XXXXX the Government obtained grand jury subpoenas for Bressi's and SHIVA's bank records. These records indicate that between August 2018 and June 2019, Bressi made cash deposits totaling nearly $1.8 million into SHIVA's First Keystone business checking account. During this period, there were no incoming wire transfers or business checks deposited into SHIVA's account. Instead, the account was funded exclusively by cash deposits. Bank personnel informed the FBI that Bressi personally made all the cash deposits at First Keystone's Danville branch.According to the bank officials, Bressi stated that he “liked to deal in cash” and “does not like checks”; and when pressed by bank personnel, he offered only “vague answers about his business.”
SHIVA's Internet Profile and Purchase Activity: According to SHIVA's website, the company was involved in “Tech Developments” and “Consulting & Custom Solutions.” SHIVA claimed to be “in the process of developing some world-changing technologies in fields as diverse as energy, medicine, beverages, communications, entertainment, aerospace, transportation, chemistry, robotics, artificial intelligence, and defense.” SHIVA's Facebook page highlighted certain products it was purportedly designing and manufacturing, including “Dazzle Coating”-which it described as “a coating to protect aircraft, drones, rockets, and other vehicles from laser directed energy weapons”-and a “Beverage Synthesizer”-a device designed to “chemically reproduce any known beverage.” SHIVA described itself as “Sci-Fi Realized” because “many of [its] products do just that-turn science fiction into science fact.”
In truth, SHIVA was long on fiction and short on fact. The FBI's review of the purchase activity within SHIVA's business checking account did not reveal any purchases relevant to Dazzle Coating, the Beverage Synthesizer, or any other products SHIVA publicized online. Instead, the FBI discovered purchases through Amazon, PayPal, and other online platforms of laboratory equipment such as Tyvek suits, respirators, separating tables, and glassware for bulking chemicals. These records-supplemented by Federal Express delivery records obtained via administrative subpoena-establish that SHIVA also purchased several chemicals “that are known pre-cursors that can be used for illegal drug production including but not limited to methamphetamine and fentanyl.”Although some of these chemicals have legitimate uses, the FBI uncovered an invoice for 5.1 kilograms of the chemical compound “3-Methyl-1-phenethylpiperidin-4-one,” which, according to a forensic chemist with the U.S. Drug Enforcement Administration (“DEA”), is a “precursor for 3-methylfentanyl” with no legitimate, licit use.
Following these discoveries, the FBI elected to conduct a “trash pull” from a dumpster on SHIVA's commercial property, which was located along Route 15 in Lewisburg, Pennsylvania. At approximately 5:00 p.m. on November 29, 2018, Pennsylvania State Police Troopers Ryan Kelley and Russell Burcher, who were coordinating with the FBI investigative team, drove to the SHIVA property, opened the dumpster outside the building, seized two trash bags from inside, and then drove off. The dumpster was located in the parking lot a short distance off Route 15; there was no gate or fencing around either the parking lot or the dumpster, and the dumpster was not secured by a lock, chain, or any other mechanism.
Inside the SHIVA trash bags, the FBI uncovered, among other items, two empty glass bottles of the chemical “Aniline” and a white laboratory coat stained with residue of Aniline and 4-Anilinopiperidine. An FBI chemist informed the investigatory team that these are “precursors used in the synthesis of fentanyl and fentanyl [analogues],” though they “are known to have other uses outside of fentanyl synthesis.” The DEA chemist confirmed that 4-Anilinopiperidine is “used in a synthesis method of fentanyl” and “advised that the identification of Aniline and 4-Anilinopiperidine on the lab coat is pretty convincing evidence of fentanyl synthesis.”
Interviews with Confidential Witnesses: In addition to monitoring SHIVA's internet profile and purchasing activity, the FBI interviewed multiple confidential witnesses with knowledge about Bressi and SHIVA. The FBI has identified the first confidential witness (“CW-1”) as “a person who claimed to have been in a relationship with [Bressi] but [who] broke off the relationship after discovering that [he] was on federal probation and . . . involved in drug trafficking.” CW-1 told the FBI about her relationship with Bressi, recounting multiple instances in which Bressi spent thousands of dollars in cash on luxury items for CW-1- including $5,000 for a pair of diamond earrings and $18,000 for a Land Rover.CW-1 also stated that Bressi “regularly” traveled to Cleveland, Ohio to “see a black man named ‘Monty,'” and that every time Bressi met up with Monty, “he returned with a big black bag full of cash.”
The second confidential witness (“CW-2”) worked at SHIVA. Although Bressi purportedly hired CW-2 to “manage SHIVA's clients and do marketing,” CW-2 informed the FBI that he/she “never met a client.” According to the FBI, CW-2 “was not aware of any type of service being provided by SHIVA” and “never saw any product from SHIVA go out the door for sale.”
Meetings Between Bressi, Henderson, and Harris: The FBI and its partners at the State Police also reviewed the Defendants' historical cell phone location information and surveilled the Defendants and the SHIVA commercial property.Through these efforts, the FBI observed several meetings between Bressi and his co-defendants, Henderson and Harris.
For example, using prospective location and pen register data for Bressi's and Harris's cell phones, the FBI learned that Bressi and Harris arranged a meeting at the Springfield Mall outside Philadelphia, Pennsylvania on September 12, 2018. That day, local police officers were dispatched to perform physical surveillance at the mall; they identified Bressi and a black male, who they believed to be Harris, exit a store together and walk toward their respective vehicles. They saw Bressi grab an unidentified object from the trunk and place the object in the other man's car. The two men shook hands and then went their separate ways.
The FBI then contacted the State Police and asked them to conduct a lawful traffic stop of Bressi. State Police Trooper Luke Straniere, who was positioned on Interstate-80, spotted Bressi's vehicle and followed it for about a mile. During this time, Trooper Straniere “paced” Bressi's vehicle, matching Bressi's speed and monitoring his speedometer to determine how fast Bressi was driving; he registered Bressi's vehicle traveling 80 miles per hour in a 70-miles-per-hour zone. Trooper Straniere then conducted the traffic stop, which lasted approximately 24 minutes. During the stop, Bressi “displayed a nervous demeanor”-his hands were shaking, voice quivering, and the vein in his neck visibly pulsating. Bressi also lied to Trooper Straniere about his travel: Bressi said that he was coming from a business meeting in Hazelton (though Trooper Straniere knew he was returning from the Philadelphia area) and claimed he left his home at 2 p.m. (though Trooper Straniere knew that to be impossible given that Bressi was traveling between his home in Danville and the Springfield Mall outside Philadelphia).
Bressi then consented to a pat-down and vehicle search. During the patdown, Trooper Straniere discovered a wad of cash totaling $2,000. And in the car, Trooper Straniere found an additional $10,000 in cash inside a plastic grocerystyle bag. Trooper Straniere then seized the money and took it to the State Police Barracks in Milton for inspection.
Additionally, FBI agents observed two separate meetings in 2018 between Bressi and Henderson (i.e., “Monty”) at a Perkins restaurant in Clarion, Pennsylvania. At the second meeting, which occurred on November 30, 2018, agents saw Henderson retrieve a bag from his car and then give the bag to Bressi.Afterwards, Bressi returned home and then deposited $33,000 into his bank account. For his part, Henderson was stopped by the Pennsylvania State Police on his return to Ohio; he told the Troopers that he had been visiting family in New York-a statement they knew to be false.
3. June 2019 Search and Interviews
Based on these investigative efforts, the Government sought and obtained a search warrant for the SHIVA property and Bressi's home in Danville. In support of the search warrant application, FBI Special Agent Timothy K. O'Malley, the lead investigator on the case, prepared a lengthy probable cause affidavit detailing the information described above. United States Magistrate Judge William I. Arbuckle authorized the warrants, which the FBI investigators and their partners at the State Police executed that same day.
As shown in video footage of the search, three law enforcement vehicles converged on the SHIVA property as Bressi and his fiancee were preparing to leave for lunch. Agents and officers pulled in front of Bressi's car, exited their vehicles, and confronted the couple, guns drawn. The officers then holstered their firearms and separated the couple. Trooper Kelley guided Bressi to a picnic table on the other side of the SHIVA building, and the two sat down for an interview.
Although there is some disagreement about who initiated the interview, by all accounts the interview was friendly and conversational. At no point during the interview was Bressi handcuffed or placed in any other restraint.
According to Special Agent O'Malley's notes, before the interview began, Trooper Kelley “inquired as to whether or not Bressi had been advised of his Miranda rights.” Bressi stated that he had not; Trooper Kelley responded by “advis[ing] him that he was not under arrest and was under no obligations to speak with” them, and that “no promises would be extended,” “no threats would be made,” and Bressi “could refuse to answer any questions he liked and he was not obligated to speak to anyone.” Bressi said that “he was aware of his rights as he was familiar with these types of situations.”
Bressi began the interview by providing a detailed account of SHIVA's purportedly lawful business activities, but after Trooper Kelley outlined “the scope and depth of the investigation” against him, Bressi admitted that he was manufacturing fentanyl and fentanyl analogues. Bressi then informed the investigators that he was currently in the process of making 600 kilograms of carfentanil, a fentanyl analogue, and that in the past, he delivered “finished product in 50 kilogram quantities,” which he sold for $25,000 per kilogram.
The investigators later relocated Bressi to the Milton PSP Barracks.Special Agent O'Malley “read [Bressi] his Miranda rights,” and then restarted the interview. Bressi gave a lengthy videotaped statement in which he detailed his drug manufacturing activities and explained that the batch of carfentanil currently in production was destined for delivery to Harris in Philadelphia and to Henderson, who resided in the greater Cleveland area.
4. Controlled Deliveries
Armed with this information as well as Bressi's continued cooperation, the FBI arranged to proceed with the deliveries to Henderson and Harris-albeit under its supervision and with a different, licit substance substituted for the carfentanil.
First, on June 15, 2019, Bressi met Henderson near the Pennsylvania-Ohio border in Hermitage, Pennsylvania. Law enforcement officers saw Bressi give Henderson buckets containing the substituted substance, and then followed Henderson from Hermitage to his home in Elyria, Ohio. Once there, the law enforcement officers arrested Henderson and executed a search warrant on Henderson's home, which Magistrate Judge Jonathan D. Greenberg for the United States District Court for the Northern District of Ohio authorized the prior day.
When applying for the search warrant of Henderson's home, the Government submitted a probable cause affidavit prepared by FBI Special Agent Casey T. Carty. The affidavit identifies the location they wished to search (Henderson's home) and the items they were searching for (“evidence, contraband, fruits, and instrumentalities” of illicit narcotics manufacturing and distribution).Further, the affidavit details, among other things, the relationship between Henderson, Harris, and Bressi; Bressi's suspicious banking activity; Bressi's meetings with Harris and Henderson; and the search of SHIVA and Bressi's subsequent confessions.
Second, on June 18, 2019, Harris drove from Philadelphia to Bressi's home in Danville, Pennsylvania to pick up ten buckets of what he believed to be carfentanil. For this interaction, Bressi was wearing a recording device provided by the FBI, who had agents on site, surveilling the home and recording the exterior of Bressi's house throughout Harris's time at the residence. The video recording shows Bressi and Harris placing ten buckets of the substituted substance into Harris's truck, and the audio recording contains drug-related discussions between Bressi and Harris that arguably indicate Harris was aware of the product he was receiving.
B. Procedural History
Bressi, Henderson, and Harris were arrested on separate criminal complaints between June 10 and June 18, 2019. Later that month, on June 27, 2019, a federal grand jury in the Middle District of Pennsylvania returned a four-count indictment against the Defendants, charging them collectively with conspiracy to manufacture, distribute, and possess with intent to distribute controlled substances (Count I), and individually with possession with the intent to distribute controlled substances (Bressi - Count II; Henderson - Count III; Harris - Count IV). The Defendants pleaded not guilty.
Relevant here, following his arrest, Henderson has been held at the Lycoming County Prison. During incarceration, Henderson made numerous calls to family and friends. As stated in the Lycoming County Prison Inmate Handbook and reiterated via electronic notice at the beginning of all calls, Henderson's calls were recorded and subject to monitoring.
Apart from their respective motions for pretrial release, the Defendants have filed eleven different pretrial motions: eight motions to suppress, two motions to sever, and a motion to compel discovery. The parties fully briefed these motions and then requested an evidentiary hearing, which this Court granted and scheduled for November 15 and 16, 2022. Following the evidentiary hearing, the Court permitted the parties to submit supplemental briefing. Having received the parties' supplemental briefs, the Court finds that these motions are now ripe for disposition.
II. ANALYSIS
Before the Court now are the Defendants' eleven pretrial motions, which generally fall into two categories: (a) motions to suppress, and (b) severance and discovery motions. The suppression motions include four motions from Bressi and two apiece from Henderson and Harris:
Defendant
Motion
Docket Number
Bressi
Omnibus Motion to Suppress
Doc. 190
Motion to Suppress Evidence from the Traffic Stop on September 12, 2018
Doc. 186
Motion to Suppress Evidence from the “Trash Pull” on November 29, 2018
Doc. 188
Motion to Suppress the Statements on June 8, 2019
Doc. 150
Henderson
Motion to Suppress Prison Calls
Doc. 166
Motion to Suppress Physical Evidence
Doc. 168
Harris Motion to Suppress Co-Conspirator Statements
Doc. 160
Motion to Suppress Tape Recordings and Transcripts
Doc. 162
Additionally, Henderson and Hams filed motions to sever their trials from Bressi's, and Henderson filed a motion to compel discovery. The Court starts with the Defendants' motions to suppress and then turns to the remaining three motions concerning severance and discovery.
A. Motions to Suppress
1. Bressi's Motions to Suppress
Bressi has filed four separate motions to suppress. The first, which the parties characterize as an “omnibus” motion, challenges the legality of the Government's investigation as well as the searches and seizures performed pursuant to grand jury subpoena. The second concerns a traffic stop that occurred on September 12, 2018. The third pertains to evidence FBI investigators seized on November 29, 2018, from the dumpster on the property of Bressi's business, SHIVA. The final motion seeks to suppress statements made during a custodial interview held on June 8, 2019, outside the SHIVA building, as well as the statements he made later that day in an interview at the Pennsylvania State Police barracks in Milton. For the reasons provided below, these motions are denied.
a. Bressi's Omnibus Motion (Doc. 190)
Bressi's omnibus motion asserts three separate bases for suppression: the allegedly unlawful (i) genesis of the investigation, (ii) seizure of his bank records, and (iii) probable cause affidavits underlying the search warrants executed on June 8, 2019. None of these arguments has merit.
i. Legality of the Investigation
First, Bressi challenges the legality of the Government's investigation, arguing that the FBI initiated the investigation only after receiving information improperly disclosed by the Probation Office. According to Bressi, the probation officer responsible for his supervision violated Probation's procedures on sharing information with law enforcement by providing the FBI with details about Bressi's banking activity, employment, and business transactions. Although Bressi does not state this explicitly, it seems he believes this information sharing renders inadmissible all evidence subsequently obtained. But as the Government argues, he is wrong on the both the facts and the law.
Probation officers are employees of the judicial branch hired to, among other things, monitor the conduct and condition of probationers and individuals on supervised release. Probation officers must report this information to the sentencing court. As a general rule, “[p]robation officers in the federal system are not police investigators.” That said, courts recognize that “the objectives and duties of probation officers and law enforcement personnel are unavoidably parallel and are frequently intertwined.” So long as law enforcement is not using “the probation system for investigatory purposes” to “evade the Fourth Amendment warrant requirement,” it is “wholly permissible for law enforcement officers and probation officers to work together and share information to achieve their objectives.” Moreover, as “probation and supervised release files are under the court's jurisdiction,” the Court is authorized to grant Probation permission to share information with law enforcement.
Here, Bressi misconstrues the genesis of the FBI's investigation into his alleged criminal conduct. The investigation into Bressi did not originate with the information provided by Probation; rather, the FBI began monitoring Bressi after it received reports of Bressi's suspicious banking activity. According to the FBI's Case Opening File, on July 16, 2016, M&T Bank filed a SAR noting eleven cash deposits between February and April of that year totaling $82,000 that appeared to be “structured” to avoid bank reporting requirements. Bressi purportedly informed M&T Bank personnel that “he receives cash by courier because the companies he works for do not want a paper trail.” The Case Opening File highlights a second SAR filed in early October 2016, which discloses cash deposits that Bressi made between October 5, 2015, and October 10, 2016, totaling $71,000 that were similarly structured. Bressi provided “vague” and “evasive” answers when questioned by bank staff about these transactions. He closed the account on October 11, 2016.
It was only after that disclosure that the FBI approached Probation about sharing information on Bressi. Probation promptly notified this Court and requested authorization “to share information and intelligence with any law enforcement agency involved in [the] investigation” into Bressi's “abnormal [banking] activity.” The Court granted that request on October 14, 2016.Accordingly, as the Government contends, all subsequent communication and information sharing between Probation and the FBI were therefore “judicially authorized.”
Moreover, even absent judicial authorization, nothing in the record indicates that the FBI impermissibly used Bressi's probation officer to “evade the Fourth Amendment warrant requirement.” On this, the Court finds instructive the United States Court of Appeals for the Eighth Circuit's ruling in United States v. Shurn. In that case, law enforcement began investigating the defendant, a parolee, after receiving an anonymous phone call about the defendant's suspected narcotics dealing. The lead detective spoke with the defendant's parole officer repeatedly throughout his investigation; the parole officer verified addresses associated with the defendant (which police subsequently surveilled), told the detective about the defendant's suspected abuse of his fiancee, and then disclosed the defendant's temporary participation in a drug rehabilitation program. The defendant sought to dismiss the indictment based on these ex parte communications, arguing that his probation officer became “an advocate for the prosecution,” thereby “intertwining the judicial and executive branches” in violation of his constitutional rights to be tried by an impartial tribunal.
The Eighth Circuit rejected this argument, explaining that “[i]n our judicial system, police officers and probation officers must often work together and share information.” Because the contacts between the parole officer and detective “did not dominate the police investigation”-neither the parole officer nor the detective “relied exclusively on information from each other in their individual investigations”-the Eighth Circuit concluded that “[t]here was no violation of due process or other unconstitutional commingling of governmental powers.”